Hi Doug ,
I was sent a copy of your response to Ms. Taylor by other concerned individuals which have been looking into these ape exports and imports.
It would appear that your approach to be politically correct and ‘falsified permits not resulting in illegal imports’ is not shared by a legal expert. See below.
It is of course the tune the CITES secretariat has been playing now for some time and GRASP joining in will make it a lot more unlikely that China will ever live up to Article VIII of the convention:
- Prosecute the parties involved in the illegal imports
- Confiscate the apes in question
- If possible repatriate them to the country of origin
In addition to the assessment of what would have been appropriate due diligence procedures there are several of your other statements which require comment/clarifications:
- We are not aware of any “daily flights between Conakry and major Chinese capitals’ on which these apes were exported. Could you enlighten us? The dealers we interacted with generally suggested exports of any wildlife going east via Ethiopian Airlines from Bamako in Mali
- Can you explain the figure of 138 chimpanzees which you say were exported which does not tie in with the official CITES trade data. Is this to China or also includes other exports?
- Please explain the CITES regulations where imports and exports with falsified permits - of this serious nature- do not make for an illegal transaction?
- Are you aware that ‘asking the Guinean exporters to verify’ would not amount to fulfil due diligence obligations as you point out’?
- The fact is that not the importer but the Chinese CITES authorities asked a former Guinean CITES MA to confirm the legality of the permits. The CITES MA in office at the time informed us on camera that he had informed the Chinese MA that Mr. Namory Keita from whom they requested confirmation was not authorized to do so (all relevant documents in the Conakry Connection report).
- The CITES website contains a full listing of all approved breeding facilities for CITES I listed species and clearly there is none for apes in Africa and based on the permits we obtained the exports were from half a dozen different dealers and exporters listed on the corresponding CITES export permit from Guinea. None of them listed as an approved captive breeder of apes.
- The CITES scientific authority of China has informed us in an e-mail that most of these apes were imported by them with the purpose F code for Zoo exchanges which in turn would have required import permits. One of the export permits in our possession shows a reference to an import permit number so it is certain that China was not sure about the C source code and issued import permits prior to the export permit that would mean the fraud started at the China end.
- The Chinese MA has confirmed that copies of all the corresponding CITES import and export permits for these transactions were submitted to the secretariat
- Has GRASP asked for copies of these permits to verify its position that these exports ‘were not illegal”?
- Could you list the conservation organizations which were alarmed by this trade and pointed out these anomalies (considering several chimp conservation groups were based in Guinea and had offices on the ground when these exports started in 2007?) When did they alert CITES? With no approved breeding facility why would it have taken the CITES secretariat until 2011 to visit Guinea and issue notices dealing with these exports?
- Why have exports of wild borne apes been ongoing from other parts of West Africa in 2012 and 2013 with the Shanghai Wild Animal Park importing more chimpanzees. After the BKK COP it would appear. What about the imports from Sierra Leone to China of chimps with a source code of W where there was not even any attempt to disguise that they were wild caught? You must be aware of all these anomalies and the question is what is GRASP doing about them?
- If the CITES regulations state; ‘the country of importation is the legal owner of any confiscated or illegally imported animal', then where does Article VIII of the convention come into the picture where illegally imported animals are to be CONFISCATED by the authorities of the state of import. Why is China not complying with this stipulation to start off with?
- China is NOT THE OWNER of these chimpanzees, as you wrote , individual zoos and safari parks are currently the owners. They imported the apes illegally and maintain possession and the Chinese CITES authorities do not seem to be willing to effect changes to this status.
- The gorilla whereabouts are today a lot clearer than they were a few weeks ago an issue which will be clarified in due course.
- How is GRASP trying to convince China to confiscate these Chimpanzees? The illegal import is already confirmed and needs no further confirmation (the corresponding mission report the secretariat talks of criminal activities and acts). DNA analysis of fecal samples of some of these chimps has already been done by third parties and the results are that these shipments included, Eastern , Western and Central chimpanzees.
- When will GRASP update the ape conservation community on the progress of ‘seeing the process through to repatriation? Now six years after the first such shipments took place?
- West Africa might not have been the biggest loser of its natural heritage and DNA analysis would show that. And in the absence of any concrete proposal for repatriation and rehousing of these chimpanzees why does China not take the first step and initiate the confiscation. Without the confiscation the legal exports using CITES loopholes (moving on from C scams to S – scientific –exchanges) seem to be already in the works.
- What progress has the GRASP approach made so far to create awareness on these issues and to get the CITES secretariat to push the relevant parties to comply with Artcile VIII of the convention?
- It is hard to reconcile the word ‘Chinese scandal’ with the earlier assertion that these transactions were not illegal, That China did not instigate them , that they exploited the lack of enforcement activities for years and stockpiled apes as long as they were able to get away with it using the argumentation which GRASP now endorses and which will be counterproductive to ever seeing any ape confiscated or repatriated. The Stolen Ape Report concentrated on the role of Guinea and largely ignored the role played by the importer
Your e-mail below, in my opinion, results in GRASP having become a major part of the problem.
I completely disagree with Doug Cress’ assessment concerning these imports:
"Chinese importers fulfilled their due diligence obligation by confirming that the apes were captive bred simply by asking the Guinean exporters"
I researched this and International Law contains a similar 'reasonableness' concept to the one that I am familiar with from English Law. The International Court of Justice ('ICJ') would look at each case involving reasonableness individually on the facts. In this case I think the Judges at the ICJ would be asked something like:
"Is it a reasonable conclusion to say that China dispensed with its due diligence obligations concerning these ape imports by simply asking the Guinean exporters whether they were captive bred?"
- Chimpanzees are listed as Endangered on the IUCN Red List of Endangered Species and placed on Appendix I of CITES.
- Western Gorillas are listed as Critically Endangered on the IUCN Red List and placed on Appendix I of CITES.
- Eastern Gorillas are listed as Endangered on the IUCN Red List and placed on Appendix I of CITES.
In other words all of the apes in question appear on CITES Appendix I. Paragraph 1 of Article II of the CITES Convention is clear with regard to species on Appendix I that:
"Trade in specimens of these species must be subject to particularly strict regulation in order not to endanger further their survival and must only be authorized in exceptional circumstances".
In addition, Paragraph 3 (a) of Article III of the CITES Convention clearly states that an import permit shall only be granted if:
"a Scientific Authority of the State of import has advised that the import will be for purposes which are not detrimental to the survival of the species involved".
When reasonableness is applied to individuals it is generally done by asking, e.g. in this case "What would a reasonable Scientific Authority in the same situation as the Defendant do to satisfy him or herself that these imports would not be detrimental to the survival of the species in the wild?"
In answer to that, in my legal opinion, given the provisions of CITES quoted above, a simple phone call or e-mail to the Guinean exporters would be nowhere near enough.
Further, if we know there were definitely Chinese import permits that could create a presumption that the Chinese were not actually 100% certain that these apes were captive bred. I say this because Paragraph 4 of Article VII of the CITES Convention states that:
"Specimens of an animal species included in Appendix I bred in captivity for commercial purposes (...) shall be deemed to be specimens of species included in Appendix II".
Now if I'm reading the CITES Convention right trade in species that are listed on Appendix II only requires export permits, not import permits.
From that it follows that if the Chinese issued import permits they weren't so convinced that these apes were captive bred to have treated them as '...specimens of species included in Appendix II'. If so, if they weren't sure, that's even more reason for them to have made more checks...
The above is only at the level of the CITES Convention itself. I'm no expert on the content and intricacies of the voluminous CITES Regulations and Decisions and haven't gone through them at this stage but, from a consideration of the CITES Convention text itself, the above conclusions seem to me to be reasonable.
Dear Ms. Tyler,
I hope all is well; thank you for the e-mails and your interest in the issue of great apes and their exportation to China...
Beginning in 2007, chimpanzees and other great apes were regularly exported out of Guinea to China aboard daily flights between Conakry and major Chinese capitals that had been established to support Chinese infrastructure projects underway in West Africa. It is known that exports for 138 chimpanzees and 10 gorillas were listed on the CITES trade database, and it is important to note that these permits were not illegal -- they were falsified, which, under CITES regulations, is not the same thing.
In all cases, the apes were listed as "captive-bred," which is considered legal for export under CITES. Chinese importers fulfilled their due diligence obligation by confirming that the apes were captive bred simply by asking the Guinean exporters. Under CITES, the import can then proceed and is regarded as legal.
Of course, there are no captive breeding facilities for apes in West Africa, and gorillas do not even occur naturally in Guinea, which means they had to be imported first from somewhere else in Africa.
A number of conservation NGOs were alarmed by the growing trade, and alerted CITES to the violations. In 2011, CITES was finally granted permission by Guinea to investigate, and concluded that a major violation of CITES had occurred, and Guinea was suspended from trade in CITES Appendix I species in 2013.
Under CITES regulations, the country of importation is the legal "owner" of any confiscated or illegally imported animals, so China currently maintains possession of these chimpanzees, most of which are scattered in zoos throughout eastern and southern China. The gorillas' whereabouts are unclear, and it is not certain that any of the 10 is still alive.
GRASP is working to convince China to legally confiscate the chimpanzees, in order to confirm the illegal nature of their importation. Once confiscated, China must then be convinced to return the apes to Africa, following DNA testing to determine the sub-species and country(s) of origin. That will be a long, slow, difficult and political process, but one GRASP is committed to see through.
Unfortunately, there is currently not enough space in Africa sanctuaries to receive the chimpanzees in the country(s) of origin. The only chimpanzee sanctuary in Guinea (Centre de Conservation pour Chimpanzes) is full beyond capacity, and the next closest -- Tacugama Chimpanzee Sanctuary in Sierra Leone and Drill Ranch in Nigeria -- are well beyond capacity too. It might be argued that the chimpanzees could got to a neutral African country sanctuary, such as Sweetwaters in Kenya or JGI-Chimpanzee Eden in South Africa, but that solution would do little to restore West Africa lost natural heritage.
GRASP works within the UN political system and utilizes its global standing to push the agenda mentioned above. It does no good to promote this issue via Facebook or the website on a daily basis, as public anger and angst will not alter the outcome. That said, GRASP included the Chinese scandal -- and numerous others -- in its 2013 report, Stolen Apes, which can be downloaded at www.un-grasp.org.
I hope this helps...
GRASP Programme Coordinator